[ameister14]

Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal.

As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort

Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.

[actionfromafar]

Is that why call things getting "borked"?

[mcherm]

It is not.

Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.

[rayiner]

The current state of antitrust law expands far beyond Bork and conservatives. I’d be surprised if any of the top antitrust scholars are conservatives: https://leiterlawschool.typepad.com/leiter/2021/10/10-most-c...

[ameister14]

I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law.

If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference.

It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter.

The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency.

One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer.

I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking.

Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.